APPELLATE COURT OPINIONS

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Jasmine A. Ali v. Eric N. Fisher, et al.

E2003-00255-COA-R3-CV
After an automobile accident in which she suffered serious injuries, Jasmine A. Ali ("Plaintiff") sued both the driver of the automobile, Eric N. Fisher ("Fisher"), and the owner of the automobile, Thomas Scheve ("Scheve"). The claim against Scheve was based on negligent entrustment. Prior to trial, Plaintiff and Scheve were in sharp disagreement as to whether Scheve's alleged negligent entrustment resulted in Scheve's being vicariously liable for Fisher's conduct, or whether Scheve's negligence should be apportioned by the jury pursuant to comparative fault principles. The trial court concluded Scheve's alleged negligent entrustment should be apportioned by the jury pursuant to comparative fault principles. After a trial, the jury returned a verdict for plaintiff and apportioned fault, 80% to Fisher and 20% to Scheve based on his negligent entrustment of the vehicle to Fisher. The trial court entered a judgment in accordance with the jury's verdict. Plaintiff filed a Motion to Alter or Amend Judgment asking the trial court to reverse its earlier pre-trial ruling and hold Scheve vicariously liable for Fisher's negligence because Scheve negligently entrusted the vehicle to Fisher. The trial court granted the motion and amended the judgment which, in effect, held Scheve and Fisher jointly and severally liable for the entire amount of the jury's award. Scheve appeals. We hold the trial court erred when it amended the original judgment after concluding, post- trial, that Scheve was vicariously liable for Fisher's conduct. We vacate the amended judgment and reinstate the original judgment of the trial court entered in accordance with the jury's verdict apportioning fault.
Authoring Judge: Judge David Michael Swiney
Originating Judge:John S. Mclellan, III
Sullivan County Court of Appeals 08/29/03
State of Tennessee v. Rhonda Rock

E2002-01580-CCA-R3-CD

The defendant appeals her sentence of four years for voluntary manslaughter. The defendant contends that the trial court erred in denying her any form of alternative sentencing. We conclude that the trial court did not err in sentencing and affirm the judgment of the trial court.

Authoring Judge: Judge John Everett Williams
Originating Judge:Judge R. Jerry Beck
Sullivan County Court of Criminal Appeals 08/29/03
Charles W. Cole v. State of Tennessee

E2002-02535-CCA-R3-PC

The petitioner, Charles W. Cole, pled guilty on February 4, 2000, to five sexual offenses and, in January 2001, filed a petition for post-conviction relief, asserting that his trial counsel was ineffective. Following a hearing, the post-conviction court dismissed the petition, and the petitioner timely appealed. We affirm the dismissal of the petition

Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Lynn W. Brown
Carter County Court of Criminal Appeals 08/29/03
Shawn E. McWhorter v. Randall Bare

E2002-02896-COA-R3-CV
Professional pilot Shawn E. McWhorter ("Plaintiff") sued Randall Barre ("Defendant") for defamation based upon a letter Defendant wrote to the Federal Aviation Administration ("FAA") containing allegations that plaintiff was medically unfit to be a pilot. The jury returned a verdict for plaintiff and awarded $25,000 in compensatory damages and $42,500 in punitive damages. The trial court entered its judgment, as later amended, in favor of plaintiff against defendant for $105,820.01, consisting of compensatory damages of $25,000, punitive damages of $42,500, and attorney fees and expenses in the amount of $38,320.01. The trial court's award of attorney fees and expenses was based upon defendant's refusal to admit liability in response to requests for admission. Defendant appeals. We affirm, in part, and reverse, in part.
Authoring Judge: Judge David Michael Swiney
Originating Judge:W. Neil Thomas, III
Hamilton County Court of Appeals 08/29/03
Barbara Lee Bunce Kerce v. Stephen Paul Kerce

M2002-01744-COA-R3-CV
The appellant Stephen Paul Kerce challenges the divorce decree entered in Moore County Circuit Court, alleging that the court erred in its valuation and distribution of the marital estate. We affirm.
Authoring Judge: Judge William B. Cain
Originating Judge:Lee Russell
Moore County Court of Appeals 08/29/03
Department of Children's Services v. C.L. & M.T.

M2001-02729-COA-R3-JV
At issue in this appeal is the petition filed by the Department of Children's Services to terminate the parental rights of Mother and Father to nine of their children. After a trial, the trial court granted the petition to terminate the parental rights of Mother and Father based on abandonment, failure to comply with the Permanency Plans, and persistence of the conditions which led to the removal. Each parent independently appeals the decision of the trial court, arguing that there was not clear and convincing evidence to support the trial court's ruling. Because we find that grounds for termination were not proved as to either parent, we reverse the judgment terminating Father's and Mother's parental rights.

Originating Judge:Andrei E. Lee
Davidson County Court of Appeals 08/29/03
Andrew Cole v. State of Tennessee

W2002-01432-CCA-R3-PC

The Appellant, Andrew Cole, appeals the dismissal of his petition for post-conviction relief by the Gibson County Circuit Court. Cole is currently incarcerated as a result of his jury convictions for attempted first degree murder, attempted second degree murder, aggravated assault, and felon in possession of a firearm. On appeal, Cole raises the issues of: (1) whether he received ineffective assistance of counsel; (2) whether the trial court erred in refusing to appoint “new counsel” for him at trial; and (3) whether he was improperly sentenced as a multiple offender. After review of the issues, we affirm the dismissal of the petition.

Authoring Judge: Judge David G. Hayes
Originating Judge:Judge L. Terry Lafferty
Gibson County Court of Criminal Appeals 08/29/03
M2002-02661-COA-R3-CV

M2002-02661-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Irvin H. Kilcrease, Jr.
Davidson County Court of Appeals 08/29/03
State of Tennessee v. Charles Rufus Foster Sr.

W2002-00350-CCA-R3-CD

The defendant appeals his conviction of rape and his ten-year sentence. The defendant contends that the evidence is insufficient to support the conviction, that the trial court erroneously allowed the victim to testify, and that expert testimony should not have been admitted into evidence. The defendant also contends that the trial court erred in sentencing. After careful review, we conclude the evidence is sufficient to support the conviction and the trial court did not err. We affirm the conviction and the judgment of the trial court.

Authoring Judge: Judge John Everett Williams
Originating Judge:Judge C. Creed Mcginley
Carroll County Court of Criminal Appeals 08/29/03
In Re: The Estate of Merle Halliburton Neal Myers v. Farmers & Merchants Bank Corp., Inc. Brooksie Byers, Douglas Myers, James Myers

M2002-00888-COA-R3-CV

After the death of their elderly mother, her sons discovered that the decedent's stepson and his wife had used a power of attorney to transfer the funds from the decedent's $20,000 CD to themselves. The decedent's son filed a petition to have the money restored to her estate. The trial court held that the CD was a valid inter vivos gift from the decedent. We reverse, because there is no evidence in the record that such a gift was ever made.

Authoring Judge: Judge Patricia J. Cottrell
Originating Judge:Judge Robert E. Burch
Stewart County Court of Appeals 08/29/03
In Re: Lillie Odessie Green, Decedent

M2002-01672-COA-R3-CV
The court is asked to construe the following language contained in a form will: "I give all my estate to my children, if any, who survive me in equal shares, per stirpes." The testatrix was survived by four of her five children. The trial court held that the two children of the testatrix's child who predeceased her did not take any of her estate. We hold likewise.
Authoring Judge: Judge Royce Taylor
Originating Judge:Frank G. Clement, Jr.
Davidson County Court of Appeals 08/29/03
Lindsay Alford vs. Oak Ridge City Schools

E2002-03133-COA-R3-CV
Lindsay E. Alford ("the plaintiff") and her father, David R. Alford, IV, sued The Oak Ridge City Schools ("the high school") under the Governmental Tort Liability Act ("GTLA") for injuries sustained by the plaintiff when she slipped on a hallway floor at Oak Ridge High School, where she was a student. At the conclusion of the plaintiff's proof, the trial court granted the high school's motion for an involuntary dismissal, finding that, while the plaintiff had proven the existence of water on the floor, she had failed to prove that the high school knew or should have known about the water. From this ruling, the plaintiff appeals. We affirm.
Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:James B. Scott, Jr.
Anderson County Court of Appeals 08/28/03
TGJ & Co. vs. Michael E. MaGill

E2003-00298-COA-R3-CV
Margaret E. Bowers ("the Claimant") appeals the judgment of the trial court, which reversed an administrative determination of the Commissioner of the Department of Labor and Workforce Development ("the Commissioner"). The Commissioner had held that the Claimant is eligible for unemployment compensation as a result of the termination of her employment with TGJ & Co., Inc. ("the Employer"). Because we hold that the Claimant voluntarily quit her employment without good cause, we affirm the trial court.
Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:John F. Weaver
Knox County Court of Appeals 08/28/03
Adana Carter v. Utica Mutual Insurance Company

E2002-01779-WC-R3-CV
The trial court sustained a motion for summary judgment in favor of the employer and held that the injury did not occur within the course of employment. The employee contends she was required to make the trip in question and was on a special mission and that the usual rule of noncompensability in going to or coming from work did not apply. The judgment is reversed as the injury occurred on the return trip which was a special errand or mission for the benefit of the employer.
Authoring Judge: Thayer, Sp. J.
Originating Judge:W. Frank Brown III, Chancellor
Carter County Workers Compensation Panel 08/27/03
State of Tennessee v. Voss Johnson

W2002-01487-CCA-R3-CD

Following a jury trial, Defendant, Voss Johnson, was convicted of two counts of especially aggravated robbery, one count of attempted voluntary manslaughter, and one count of second degree murder. Defendant now appeals his convictions arguing that the trial court erred in denying his motion to suppress and that the evidence is insufficient to sustain his conviction for second degree murder based on a theory of criminal responsibility. After a careful review of the record, we affirm the judgments of the trial court.

Authoring Judge: Judge Thomas T. Woodall
Originating Judge:Judge Bernie Weinman
Shelby County Court of Criminal Appeals 08/27/03
Dianna Dawn Mcgahey v. Davis Lee Mcgahgey

W2003-01051-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Originating Judge:Ron E. Harmon
Carroll County Court of Appeals 08/27/03
State of Tennessee v. Evelyn Holly

W2002-01200-CCA-R3-CD

Defendant, Evelyn Holly was convicted of second degree murder following a jury trial. Defendant now challenges her conviction arguing that the trial court erred in not suppressing her statement to the police. Defendant also contends that the evidence is insufficient to sustain her conviction of second degree murder. Specifically, Defendant argues that the evidence showed that she and the victim, Ronald Kyles, were engaged in mutual combat at the time of the killing and requests this court to reduce her conviction to voluntary manslaughter. After a thorough review of the record, we affirm Defendant's conviction for second degree murder.

Authoring Judge: Judge Thomas T. Woodall
Originating Judge:Judge Arthur T. Bennett
Shelby County Court of Criminal Appeals 08/27/03
In Re: The Estate of Lowell Frazier

E2002-01203-COA-R3-CV
This appeal concerns two separate suits filed in the Chancery Court for Campbell County in connection with the administration of the Estate of Lowell Frazier. The first suit was brought by Sam Lough, individually, and also, along with his wife, Debbie Lough, as parents and guardians of Matthew Lough, and Darryl Herron and Elizabeth Herron, as parents and guardians of Chelsea Herron. It sought to establish a lost or spoilated will of Mr. Frazier, which was dated January 30, 1998 ("the first will"). The second suit was brought by Matthew Lough and Chelsea Herron by and through their guardian ad litem, appointed in the first case, contesting a later will dated May 24, 2000 ("the second will"). The cases were consolidated below and the suit seeking to establish the first will was tried first. Under an agreement of the parties, the first case must be decided in favor of the minors before they would have standing to contest the second will. After a plenary trial a jury found as to the first case that the Plaintiffs proved by clear and convincing evidence that Lowell Frazier did not destroy the first will. Thereupon, the second trial was had before the same jury, which found against the second will on the ground that due execution was not proved and that Glenda Faye Smith, who was the sole beneficiary of the second will, and at the time it was executed was attorney-in-fact for Mr. Frazier, did not overcome the presumption of undue influence over Mr. Frazier by clear and convincing evidence. Ms. Smith raises a number of issues, many of which merit a critical examination, but our review of the record persuades us that the issue which contends that she was entitled to a directed verdict in the first case is the dispositive issue in this appeal. We find that the Court was in error in not directing a verdict in her favor in the lost will case and reverse the judgment rendered therein. This results in the Plaintiffs not having standing to pursue the second case, which is reversed and dismissed.
Authoring Judge: Judge Houston M. Goddard
Originating Judge:Billy Joe White
Campbell County Court of Appeals 08/27/03
Mary Guess v. Sharp Manufacturing Co. of America,

W2002-00818-WC-R3-CV

Originating Judge:Floyd Peete, Jr.
Shelby County Supreme Court 08/27/03
State of Tennessee v. Ricky Thompson

E2002-02631-CCA-R3-CD

The Defendant, Ricky Thompson, was convicted by a jury of first degree murder, aggravated assault, and arson. He was sentenced to death for the first degree murder. Upon the Defendant's motion for judgment of acquittal, the trial court entered an order modifying the jury's verdicts to not guilty by reason of insanity. The State raises one principal issue in this direct appeal, which it states as follows: whether the trial court erred in reversing the jury's determination of guilt and granting the Defendant a judgment of acquittal by reason of insanity on charges of first degree murder, aggravated assault, and arson. Because we find the evidence legally sufficient to support the jury's verdicts, we reverse the trial court's order, reinstate the jury's verdicts, and remand the case to the trial court for consideration of the Defendant's motion for a new trial and sentencing on the aggravated assault and arson convictions.

Authoring Judge: Judge David H. Welles
Originating Judge:Judge John K. Byers
McMinn County Court of Criminal Appeals 08/27/03
State of Tennessee v. Ricky Lynn Littrell

M2002-01298-CCA-R3-CD

The defendant, Ricky Lynn Littrell, was convicted by a Bedford County Circuit Court jury of theft of property valued more than $1,000 but less than $10,000, a Class D felony, and the trial court sentenced him as a career offender to twelve years in the Department of Correction. In this delayed appeal, the defendant claims that (1) the evidence is insufficient to support his conviction; (2) the trial court erred by allowing the stolen merchandise into evidence because a chain of custody had not been established; and (3) the trial court erred by allowing a list of the stolen merchandise into evidence because the testifying witness did not properly authenticate the list pursuant to Rule 901, Tenn. R. Evid. We affirm the judgment of the trial court.

Authoring Judge: Judge Joseph M. Tipton
Originating Judge:Judge Lee Russell
Bedford County Court of Criminal Appeals 08/27/03
Tony Willis v. Dept of Correction

M2000-01397-SC-R11-CV
The issue in this case is the proper standard to be applied to motions to dismiss petitions for common-law writ of certiorari in prison disciplinary proceedings. This appeal involves a prisoner who was charged with and convicted of the disciplinary violation of attempted escape. The prisoner filed a petition for a common-law writ of certiorari in the Chancery Court for Davidson County challenging the action of the disciplinary board arguing that it was illegal, arbitrary, and excessively punitive. The chancery court granted the Department of Correction's motion to dismiss for failure to state a claim because the process provided to the petitioner was commensurate with the sanctions imposed upon him, and therefore, there was no violation or deprivation of due process. The majority of the Court of Appeals affirmed the trial court's judgment, with Judge Koch dissenting. We granted Petitioner's request for permission to appeal, and after conducting our own de novo review of the record, we hold that the petitioner did state a claim for relief under the common-law writ of certiorari because his petition alleged that the disciplinary board failed to follow its own disciplinary guidelines and that the petitioner was substantially prejudiced thereby. At the same time, we agree with the Department of Correction that the petitioner did not state a claim for relief under the due process clause of the United States Constitution or the Tennessee Constitution. Accordingly, the decision of the Court of Appeals is reversed in part, affirmed in part, and the case is remanded to the trial court for further proceedings.
Authoring Judge: Justice William M. Barker
Originating Judge:Ellen Hobbs Lyle
Davidson County Supreme Court 08/27/03
State of Tennessee v. Redonna Hanna

W2002-00821-CCA-R3-PC

The petitioner, Redonna Hanna, was convicted of three counts of aggravated robbery, one count of especially aggravated robbery, one count of aggravated burglary, and one count of first degree murder. His convictions were affirmed on direct appeal. He filed a petition for post-conviction relief, alleging that his trial counsel was ineffective by not objecting to the trial court's instructions as to criminal responsibility. Following an evidentiary hearing, the post-conviction court dismissed the petition, and the petitioner appealed. We affirm the dismissal.

Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge James C. Beasley, Jr.
Shelby County Court of Criminal Appeals 08/27/03
W2003-00129-COA-R3-CV

W2003-00129-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Originating Judge:Jon Kerry Blackwood
Crockett County Court of Appeals 08/27/03
William Perry v. Ricki Perry

W2001-01350-SC-R11-CV
We granted this appeal to determine the correct standard to be applied in modifying a temporary, open-ended award of rehabilitative alimony. We hold that a substantial and material change in circumstances must be shown in order to extend, or otherwise modify, such an award. Therefore, we reverse the judgment of the Court of Appeals, and we remand the case to the trial court for further proceedings consistent with this opinion.
Authoring Judge: Justice Janice M. Holder
Originating Judge:Martha B. Brasfield
Tipton County Supreme Court 08/27/03